McGREGOR v. NIXON.

Wanganui Chronicle, Volume L, Issue 12145, 3 September 1908, Page 5

McGREGOR v. NIXON.

PLAINTIFF NON-SUITED, WITH COSTS.

w i lSA^ e was 11Gxfe called on- John ±Joyd McGregor claimed £818 10s 6d trom J. H. Nixon, being the difference between the price he was to receive on a safe p f a H n e of 2000 sheep (the sale falling through), and the price he actually received, the plaintiff alleging that defendant guaranteed payment and was liable to him for the difference" of pneo received, owing to the sale not being completed. , Ml' Hutchison appeared for plaintiff and Mr Treadwell for defendant 2 AS lengthily outlining his claim. Mr Hut-' chison called the plaintiff. John Boyd McGregor, of Wanganui, farmer the plaintiff. Had been employ! ing Dalgety and Co. in stock matters for sometime. He placed 2000 ewes in i m, s m November last year for sale The pnee of sheep was good. Remembered a Mr Thompson, of Thompson and Musgroye, coming about some S^ i? pecember with a Mr Kenneffi of, DaMy ""* Co.'s They, looked through all the sheep for sale. Witness told .Thompson how they were bred, and gave . Thorn-son- every information. About five per cent, culls was proposed by Kennedy to be allowed. . Witness told Kennedy he wanted 15s, but Mr inompson said he would give 14s only Then witness after a time said he would take 14s. The time mentioned for delivery was 14th February. . It was understood that the sheep were to be shorn. A few days after he was told in wangamu that the sheep had changed hands. Thompson had sold them to £? f er m. Sonic time after was informed that .Thompson and Musgrove were bankrupt. Witness saw defendant in .February Nixon said he did not think fetaer would take the sheep away on the date arranged. Mr Nixon referred to Fetzer as : having bought from, Ihompson. Witness understood the sheep were to be kept for Nixon's ewe fair. An arrangement ..was made as to grazing between Nixon. Baggett and himself,- that sheep could not be dealt with/ until 26th February. Witness complained at having to hold the sheep and Nixon said something would be allowed. It was agreed witness should graze the sheep at l£d until the ewe fair. Witness did not know Fetzer then. He saw the manager of Dalgety and' Co.' about the sheep, and they went to see Nixon. -Knew Baggett was in communication with the D.O.A. then. At the interview Baggett told Nixon he had eorrespondenca from D.O.A. and the deal could go on, and Nixon stated he would pay Dalgety and Co.. who would pay-the D.O.A. and myself.' This was, he understood, the position. Witness asked Nixon to let him see the contract for the sale of the sheep to Fetr zer, and Nixon showed him a document (produced) %vhich he read. Witness got the numbers and ages of the sheep from Nixon. Witness said Nixon spoke" about using his yards to fix up the sheep, but he preferred Dalgety's yards, which were agreed upon. Witness told Aitken (of Nixons) that the sheep (about 1957) would be in yards by "Monday, and they were there by that* time. Had told Aitken that sheep would be there at 7 a.m., the others did not come till 10 a.m: Then witness met Mr Fetzer, who said they had better get along with the sheep ,and the drafting was proceeded with, plaintiff assisting, and marking the different sheep. They were engaged all day at this; leaving'a few to draft ■ out the .two-toothed and the culls were mixed, but easily distinguish- ' abie. Kennedy was there all day and I jt was arranged to count them next day. One of Dalgety's men had told mm not to let the sheep co until he (plaintiff) heard from them."Afterwards ! he was told to let them go, that Dal- I gety and Co: had a letter from Mr I Nixon. Next day Fetzer came along ■ und said he.had bought Romney-X;in-coln.. sheep and Ec did not know how he (plaintiff) had sold the sheep. Witness said there were some Romney-Lin-colns amongst the sheep. Fitzer and plaintiff discussed the mouths, etc., and Fetzer again said he- had bought Rom-ney-Lincolns and had placed them. Plaintiff said he knew nothing about that and described how he had sold the sheep. Fetzer said he would not take the sheep and ho would not pay for 'them. Could not remember the exact words used,' but there was a bit of /haggling." This was on the Tuesday ~the boat; race day. Did not hear Fetzer say anything about Romney-Lin.-colns on the Monday. On the Tuesday Fetzer said they would have the sheep in the yard arid go away to see Nixon. Witness went away and said he would come .back again. Fetzer took out a slip of paper with some numbers on which witness looked at and recognised and there was no reference to Romhey Lincolns on it.' When he came back he-never saw Mr Fetzer, and never saw him that day again. Witness went up to town and inquired for Fetzer, then to Dalgety. and Co.'s, and was informed that the manager and Kennedy were away. He never saw Nixon that day:' Came in on Wednesday,'; Nixon's ewe fair day, looked at the sheer), and went back to town and saw Fetzer about the sheep and he said, he would not take^the sheep nor pay. for them. Was informed that I must'take the sheep home. Witness then went to Dalgety'e and asKed Hair there to ring up Nixon as . to. ;.what was to ■ be; done with the sheep: ; Hair told him later they were not-going to take the sheep away, so he took them back.home. The sheep had been in the yards for several days. The weather had been dry. until the boat race* and feed .was short. It was wet on the boat race day. The sale by witness _in December was more favourable to him than in February. Afterwards his farm was leased and the sheen were valued, and, sold. Received 7s for one lot, 10s 3d for another lot, and 12s for another.. Was to have got 14s ori."iiiallv..

To, Mr..■ .Treadwell;:■ Had never made any bargain with: Petzer. • His-contract was with Thompson and Mu6grove as stated... The sheep were nob yarded for Thompson for incpe?tion by nim. Witness farm consisted of 896 acres. The sheep were running over 300 to 400 acres. The first lot (GSO odd) were rounded up for Mr Thompson to see in an open paddock, when he had a good look at them, and witness told how many there were, etc. Thompson sat on his horse and looked at the sheep, and appeared quite satisfied, and did not inspect the rest. The sheep yarded for Fetzer were as described to Thompson. There were not a lot of old ones, but they were just as stated in tho sale note. The second sale note rhompson to Fetzer did not comply with the description of the sheep yarded exactly.

To His Honour: The difference in Thompson's sale note is that the 6toothed sheep are not mentioned in the other sale note to Fetzer. To Mr Treadwell: There were not 1100 t<. 1200 old sheep in the flock iSEr 6? y me- were not 110<> to 1200. 4to 5-year sheep. Would not say now many there were Had never met

l<<?tzer until he came over to get tit--sheep Was,-indebted to Dalgety sa&s ■ . Co. about-the 14th February. Smt "'- ---posed Fetzer was to have right to rcfeS^- ' ?heeP "«V" t0 the staidaid. Ha*V . Sl^l^ was «*** from R 3 «T - t nto get the sheep. Fetzer came down* . Jth fogs-could not say how nianv, " and then went.to Cherry Bank. It-- , would be a proper thing, for a purchase* -" to go through the sheep and sea if they - -, corresponded with the description, (&-. the Wednesday witness and Fetzer were - to come back to finish inspecting the-/ sheep. Do not remember Fetzer say ing.he would not finish inspecting the— sheep as they did not correspond wit£- " the description. Fetzer did say he had? ■' bought the sheep^as Romney-Lincolns^ *d u S!L d the mo»ths did not correspond"' with the numbers. Fetzer led witness"to understand he would not take thepsheep and produced a list. As far as- - = witness could say he did not tell Fetzer - he could not expect him to take the- - - Di?V + l 6!^^ Romney Lincoln*. _ Did not tell Fetzer he would be a a- fool lf he took the ghee _ Fetzer said he would not take the sheepplamtiflF came to town and then went tol - * w-i if* ra^V.- Nerer ea'w him againT?m w e +^ et at the Red-"' Lion Hotel when Fetzer again said he - HSPi %* taii e the sllee P- Witnesldid see Nixon about the men not taking - • the sheep,, and Nixon showed him cot - - respondent Witness had made no- - wSt m on TSP* issue of th*1, v F Nlx°n *<>W him aud Mr Fet— va]Si^ Sew- S rm-a, nd sell stock - ' valuation to Higgle without letting de— l3wt;knSt- No claim wag madS S»- - Wil^ UgUSti>y letter from his solicitor! .' St f + made no attenipt to recover- * M^ SJ ?er\T? r made any cla^ oi- - SSir f 6U S ISOn askfed him to graj^stoek for a ther fortni£hti N . S J . fw vL^o^ ot b3- down tilJ 24th, ano? " thai, he would be paid. A valuation w"Lmade when sheep were taken over by- - f^e^n.May. The valuation (pro-- -" duced) seemed correct. Would be surprised to know that the difference ■ L- - . ,-lp Mr Hutchison; There was a diff— " erence .between Fetzer and^ Aitken fo£~ v- .^?> ".jg the + yards about mouS^ "' ,n which Mr Fetzer was wrong. In inP spect of ages the sheep as'desJSbeSr Ay ero in the yards on the : day Fetzer— -' saw them. Nixon's auctioneer valued^ - the sheep on the transaction with HigL _ :

Gilbeit Noyes Baggett, of Wangannf kne"w a nH§c + r4° r Dalgey and Confpanyr; " knew Plaintiff as a client of the firnLfor about last 18 months. Plaintiff pn fr-. - some sheep through witness's firm* " which were sold to Thompson whichT were afterwards sold to FeSer. Ha*' had correspondence with the D.O.A " Palmerston North, re Thompson'^pToT - f &" > si le- Went with p.rainti<r ■ Jbetzer. Told Nixon D.O.A. had authonsed Dalgety and Co. to Complete, - matters, and Nixon agreed to pay Dal gety and Co 15s for all the sheep de^ hvered. Witness and Nixon did all the— talking. Wrote to Nixon on 22nd February. . Understood cheep were to betaken to yards at Eastbrook. Receive* " a letter from Nixon that cheque -woufcE * be forwarded. Had left instructions JT: letter came from-Nixon that McGregor— ', was to deliver aheep. . . , <■ -;}•»' To Mr Treadwell: Common thing'forauctioneers in deals one with another - where a person was unknown, to get the other auctioneer to promise oav went. If Dalgety and Co. had handledF cur sheep and not got the money they - would have been liable in two ways. Itrwas important that, money should gw~tnrough his firm as McGregor was indebted to his firm. Witness wanted to~securo himself. Dalgety and Co. would-' , require Nixon to pay for the sheep \t.r Fetzer took them.

• v Mr Hutchison: The sheep were— with McGregor, who was ta pay Dal— - gety and Co.'s commission. Donald Kennedy, of Wanganui, stockagent, employed by Dalgety and Co. said he went with Thompson to McGre— - Kor at Cherry Bank. Thompson ha«JF~ f'very opportunity of' seeing anything? - he wanted. Thompson signed a fornr on the same day for purchase, delivery ~ to be on 14th February. Knew of sale- - to Felzer by Thompson and that latter — was bankrupt. Was at the yards witßtAitken, Fetzer and the plaintiff. Ar rived there when dispute re age of ' sheep was on, Fetzer trying to makeout sheep older than they were. Them - had been a drop of from 40 to 50 percent, in the price of sheep as compared " with prices in December. Was not at. . tho yards on the boat lace day. Fetter and a man were doing the marking; - , at the yards on the Monday. |To Mr Tr?adwell: Was there two*hours on tho 24th and again in the- - afternoon. I was told that they woufofcbe back again next morning. Witnessmade +he valuation for Dalgety and Co_ The Court here adjourned at 12.50^ p.m. ti11,2 p.m. Charles Hair was then called andP" gave evidence as to receiving and de— - livering a telephone message fronaa: Nixon.

This concluded plaintiff's case. Mr Treadwell for the defendant, moved for a non-suit. Counsel submitted?/ that the guarantee, if one, was not a-.-~ guarantee to the plaintiff at,all. Mr- - Baggett's evidence showed the customof auctioneers in selling. If the sheep— had been delivered to the plaintiff he>had a remedy against Dalgety. and Cbv and not against Nixon. There .was bo~ privity at all between Nixon and Me- / Gregor. The sheep were to be handed^ to and taken over by Fetzer and the- * guarantee does. not mean that Nixore* is to pay. Counsel quoted the Sale of" Goods Act and authorities in support of his argument, and as to the meaning-;— of the word "delivery." He submitted? that in this case delivery meant the^ giving over to and acceptance by Fet— zer of the sheep. Mr Tread well went" • into the relations of .plaintiff and de fenflant and the third party. No &c~tion would lio against Nixon unless be* - wilfully'and deliberately prevented tho"completion of the bargain. On plain- - tiff's own evidence he was stopped hy~ his own conduct from making any cEaFoxagainst .the defendant. McGregor--should have told Nixon he held fcimr responsible for any,loss, and also tol^" him before he dealt with the sheep fi>rdisposinp; of them to Higgie. Defendant had had no chance of defendine:himself.. 1S"

Mr Hutchison, in reply, contended?T that there was no estoppel by conduce,which consists of in3ucing by condacfc the other side to take active steps to>~ change their position. The contract eF~ sale Avas evidenced by the correspond*—once There were many legal meaning to the word "delivery." The plaintfffpJiad done all m his power and had <fc~--hvored the sheep. . His Honour said that in order to a»~~ preciate the real question which arises^ in this action, one must consider tfie=factor prior to the contract relied oir^ find therefore what the contract relates*to. rhen it would ba necessary to consider, -ooking into what the parties sawF^ and meant, whether the contract 6a*--been broken. The plaintiff sold sneersto Musgrove and Thompson to be de=— Ilver£L some months ahead. Musgrore— and Thompson sold similarly describesllEl (Continued on Page'B.)